1502365 (Migration)

[2016] AATA 3794

1502365 (Migration) [2016] AATA 3794 (26 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sandeep Kaur Sahi
Mr Jimi Pritpal Singh Sahi
Mr Gurjot Singh Sahi

CASE NUMBER:  1502365

DIBP REFERENCE(S):  BCC2015/396710

MEMBER:Sean Baker

DATE:26 April 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 573 Higher Education Sector visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 26 April 2016 at 2:46pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 February 2015 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant was not, or was likely not to be, a genuine student, and then proceeded to weight the factors for and against cancellation and decided that the factors for outweighed those against. The second and third named applicants’ visas were cancelled consequentially on the basis of this cancellation. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. the applicant provided a copy of the Departmental decision with her application for review.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

4. The applicants appeared before the Tribunal on 5 April 2016 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

8. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

9. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

10. The applicant provided a response to the Notice of Intention to Consider Cancellation (NOICC) in which she said that she had not attended her college for 5 months because she had a complicated delivery and difficulties after the birth. In relation to the concerns about her knowledge of her class times, the applicant said that her college monitors attendance on days of test but only assess the student on the basis of course progress, she did independent study and then discuss it with the teachers to clarify doubts, she devoted variable hours to study to clarify given topics and this answer was wrongly manipulated during the interview process. Her class times changed because she had to look after her baby so she requested a change to different class times, so the class times at the second interview were different because of this reason. She attended all the classes accumulating to 20 hours per week. In response to the delegate’s concerns about significant plagiarism, she said that the interview was taken in a rude manner, she was scared and offended, she was driving at the time, had her baby in the back and was nervous and blank. She argued that no legislation indicated that a visa could be cancelled for plagiarism, taking visuals from the internet does not show plagiarism. She has not breached conditions in the past, she said ‘they always pass me’ because she was nervous, she thought when asked if the college reported student to immigration that the question was being asked whether there was a threatening atmosphere at the college, to which she answered no. She said that there would be a significant hardship to her if the visa was cancelled and she would not be able to recover as her parents would not forgive,  and she would have sole responsibility. Going back would be the end of her study plans. She asks for her pregnancy and health issues to be given due regard, and requested a copy of the recording of interviews.

11. A submission was received by the Tribunal on 4 April 2016 which included a submission. In this the applicant said that she had been a genuine student through pregnancy and post pregnancy issues, had to change her classes, she has been told that only qualified trainers can assess if assignments reflect plagiarism or not and she questions whether the delegate had the skills to decide. She states her college was progress based not attendance based, she had just given her first assignment, she was driving and distracted, the Department refused a recording, she was pressurised, the officer did not make notes of all of the conversation, and for these reasons no weight should be given to the conversation, her answers on class timings differed due to the request to change class times to look after her son. Attached were copies of certificates and statement of results including a certificate III in painting and decorating, certificate IV in business, diploma of business, advanced diploma of management, and a copy of the response to the NOICC sent to the Department.

12. A further submission was received by the Tribunal at 2.40pm on 4 April 2016 which included the same submission to the Tribunal with a copy of the applicant’s certificate IV in ESL.

13. At hearing I explained the ‘genuine student’ concept to the applicant, as well as my understanding that actions such as plagiarism may indicate, or be symptomatic, of, conduct which indicates that an applicant is not, or is likely not to be, a genuine student.

14. I asked the applicant when she had arrived in Australia. She said in October 2009. I noted this was a considerable time. She said she had been studying all of that time.

15. She said that she had taken time off study from 13 May 2014 until November that year because of the birth of her baby. She agreed that her Advanced Diploma course was supposed to start at TEDI in September that year, but she had had the COE reissued in November because she was not able to attend classes, but had attended regularly from November 2014 onwards.

16. I asked about when her Advanced Diploma of Management from Barkly college had finished. She said on 30 June 2014, after the birth of her child on 13 May 2014. I asked how she had managed this as she had told me before that she took the time off from study from the birth of her child to November. She said that she got them before so she could finish the assignments before. I asked her to explain this in more detail and she said that she had finished all her work before the birth. She said it was on the progress basis. I noted I had some concerns if she was telling me she had completed the course but had not been going to class for some month and a half before it finished. She said that before her son was born, it was only one assignment during that period so she had asked if she could finish before that and they said it was fine, she had been there for her classes, everything is good. I asked if apart from the assignment there had been any other arrangements. She said that she was doing it fast track. I noted I was concerned that she was telling me she did not attend classes for a month and a half. She said no, she was doing a different batch, she said she had attended classes but in a different batch. She said she only had one subject left and she did one subject fast track.

17. I noted that after the birth of her child on 13 May she had not studied, according to her evidence. I asked if she had notified the Department that she was not studying. She said no as she had had an emergency Caesarean section. I asked again if she had notified the Department that she was not studying and she said she tried her best, she did not notify the Department as her CoE was issued for her class in September.

18. I then asked her about her Advanced Diploma of Business at TEDI. I asked if she had attended in September. She said she could not attend it, she could not pay the fees, so they just cancelled her CoE. She said she then explained her medical condition, that she was not able to come and they re-issued her CoE. I asked her to confirm that TEDI had cancelled her CoE and she said yes, because she did not come in to pay the fees and did not attend, but then they reissued it. I asked why her husband could not have paid the fees. She said he was not good in English.

19. She said that her classes started on 1 November 2014, and she was doing her Advanced Diploma of Business from then. I noted that the NOICC was issued on 5 February 2015. I noted that the decision record indicated that she had given varying answers to the question of the hours she attended classes. I noted that this was a concern raised by the delegate when considering the ground for cancellation. She said she had told them when her classes were. I noted that the decision record indicated that at interviews she had given varying answers to when her classes were held. She said no, she gave correct answers both times, but she had changed her timing between the interviews, she changed her timing. I asked why she had done that and she said for her son, to look after him. I asked if that was the case, why had she not explained this to the interviewer from the Department when they noted to her that the class times she had given were different. She said that she had told them.

20. She said that she did independent studies and spoke with lecturers to clarify doubts. I asked if this meant she did not attend classes. She said she did. I asked whether there were teachers who taught them things. She said there were. I noted that when I looked at the qualification framework, and what is expected of an advanced diploma, it is quite a high level of training, and so it concerned me that she may be claiming she was not being taught, it was just progress training and talking to the teacher to clarify any doubts. She said no, that was just when they were given an assignment, and if we don’t understand anything we have to search and if we still can’t understand we have to talk to the teacher. That was related to assessment, but the teacher still taught them in the class. I asked her when the classes were for the advanced diploma. She said at first it was in the morning but after she changed it was in the afternoon. She said it was three days but sometimes she did more than that to do an assignment. I asked what her subjects were and she said Maintain a business plan, Develop a marketing plan, Leadership in the business, Manage finances, Make an organisational structure. I asked if there were 4 subject a semester and she said 8. I asked if this was 8 per term and she said it was. I asked which day and hours she was taught ‘maintain a business plan’ . She said it was not like this, she did one subject and then when that finished she did another and then the next one starts. 

21. I asked her about her claim that the provider’s policy was a course progress, not attendance. She said that they just monitor student progress, it was not just one assessment, immigration just asked for one assessment, but they had had to do case studies and some activities like give a presentation, it was practical in the class. So all of these at the end of the day were assessed all together and the student just passes or not, it was not only one assessment.

22. I then discussed the claimed plagiarism with her. She said it was just her first assignment, written and project, they had not assessed more than that. I noted that the decision record stated that when the delegate entered a sample of her work into the internet search engine Google, a significant amount of her work was found word for word on the internet. In response she said that they had to access the internet and make a project, but a few things they could change, they were not word for word, she had to give examples and things.  She said she was able to get answers from the internet because it was open book. I noted that this was a written assignment, not an exam. She said no it was open book. I noted that I understood open book to be in reference to tests or exams. I noted that this was a piece of work that was put in as an assignment and a large part was from the internet, how was this her work? She said the written one was open book. I posed the question again. I said that if a significant part of the assessment looked at by the Department came from the internet, how was that her work?  She said that they had to give some examples and things. I noted that the decision said that a ‘significant amount’ was found word for word on the internet, so I was not sure that could be said to be her work. She said no it was her work. I said that I was not sure, if she was taking someone else’s work from the internet, that that was her work. I said that my understanding of study was that we got taught things, thought about that, and then we did our own work to show our understanding of what we have been taught and are assessed on that understanding, and if she was taking a significant amount of her work from the internet, I was not sure that demonstrates that she has learnt anything, not sure it demonstrates her work or understanding of the course. She said no she changed things. I said that that did not seem to be what the delegate was saying. She said if she did plagiarism, why did her teacher pass her, it was her teacher or her college’s duty. I noted that it was also their duty. But I needed to assess whether she was a genuine student. She said she had done her work. I said that I was not sure from what we had discussed that she had done her own work. She said it was just one assignment and that could not form the basis for an assessment of whether someone had committed plagiarism. I noted that she had also given some answers in the interviews, as recorded in the delegate’s decision, about in-class tests during the interview on 30 January 2015, and read to her from the notes of that interview in the decision record at Tf.8. I noted that it appeared the written assessment and the in-class test she seemed to rely very heavily on Google.  She said if they could not find anything they searched the internet and then check with our teacher. I asked what about her own work, from what she had been taught? She said it was some, not all. I explained to her that an advanced diploma was a high level of study, the highest level done at the vocational level and in some cases allows you to enter higher education. I explained to her that the Australian Qualification Framework (AQF) which states that graduates of an advanced diploma will have the skills to identify, analyse, synthesise and act on information from a range of sources, skills to transfer knowledge and skills to others and demonstrate understanding of specialised knowledge with depth in some areas, skills to formulate responses to complex problems and wide-ranging specialised technical, creative or conceptual skills to express ideas and perspectives.[1] I noted to her that that seemed to require a high level of skills. She said she was a learner, she was learning this. I noted that she had previously completed an Advanced Diploma. She said she was doing this one to enhance her skills. I said if she had completed an advanced diploma previously she should already have these skills. I said that from my perspective it was hard to see how Googling answers and changing them a little bit would lead to her developing the skills required under the AQF. I noted that his concerned me, as it may lead me to the view that she had not been undertaking study in a way that was compatible with her being a genuine student. She said that this was the fault of the college. I noted that the college had significant responsibility, but I was not assessing the college, I was assessing her, and her responsibility.

    [1] Australian Qualifications Framework Council, Australian Qualifications Framework, second edition, January 2013, p. 15 >

    I noted that the Department decision indicated that the delegate had raised significant concerns after assessment of her work, interviews with her and submissions she had made, and that after speaking with her I also had significant concerns about her period where she did not study before commencing her Advanced Diploma at TEDI, her attendance and knowledge of class times, and the plagiarism. I asked if she wished to say anything about these issues that we had not already covered. She said she had already explained. She said it was research on the internet. I said that the departmental decision said that a significant part of her work was fond word for word on the internet, and that this did not sound like it was just one sentence here or there. She said that it was up to her teacher to tell her that something is wrong. I said that that might be true, but I was assessing was whether she was a genuine student, and that under the AQF there is a certain level of skills needed for the advanced diploma and I was not sure that she would get these skills from this work. She said it was the responsibility of her teacher to tell her if she was doing something wrong. I said that she also had responsibility, I accepted that the teacher and college had a great deal, but that students have responsibility as well, I don’t think it is too much to expect that if you were doing work in this way you would say this was not what I signed up to do, I need to learn an advanced diploma and this will not get me the skills I need, and potentially leave that college. I rephrased this and noted that the college, teacher and student all had responsibilities to make sure that the student learned what they need to learn, and that it was reasonable for a student to look at work and realise they were  doing most of it off the internet, and to say this is not the level of study I need to reach the qualification that I want, to get the skills and knowledge I want, and to leave the college or raise it with the college. I noted that I was assessing whether she was a genuine student and what steps she had taken to demonstrate that she was a genuine student. She said that they should give her one more chance. I asked if she had raised the issue of copying off the internet and she said they had just given her competent, so why would she. I said I did not think this was unreasonable to expect from a student. I asked what she had wanted to get out of the Advanced Diploma of Business. She said she wanted to learn and enhance skills to use in her future. I asked if the skills she got from copying off the internet she thought would give her the skills she wanted. She said it was her first assignment. I noted she had completed an advanced diploma before. She said this was her first assignment. I noted she had done in-class tests as well where she had admitted she had copied from the internet. She said they were open book. I said I did not think that open book meant copying off the internet.

1. She then queried whether the delegate was competent to assess her assignments for plagiarism. I noted to her that I considered the steps they had taken, that is, taking a copy of her work from her college, putting that information into a search engine, and, according to the decision, finding a significant amount of her work word for word on the internet, this seemed a straightforward process, does not require particular competency, so I did not think that that required a particular level of competency.

2. Later in the hearing the applicant said that she is a genuine student and that she had not done anything wrong, it just happened this first time, and she needs one chance. She said all her assignments, she had never done plagiarism. I asked if she was saying she had never copied from the internet like this before and she said no she had not. I noted that she had then done this for her written assignment and her in-class tests. She said no, no, she had changed it a bit. I asked if she had raised this with her teacher or college then, if she had never done this before? She said this was the big mistake she did. I noted she had done an Advanced Diploma, so she was aware of the level of skills and knowledge, so that gave me further concern that she has engaged in this behaviour of taking things from the internet where she would have been aware that this was not the standard of this level of qualification because she had done an Advanced Diploma already. I noted I did not understand why this would not have led her to leave college or raise with the college or make a complaint. She said it was just her first assignment.

3. The representative said he had found out that 17 -20% of international students commit plagiarism every year and they never cancel their visas, they fail subjects, send them back that you are not passed and to do the class again. I asked where he got this information from and he said from Google. He said that secondly there was software to assess plagiarism, and they did not do this, and thirdly that the delegate was not an assessor, they can’t do this. I asked why the delegate could not do this. He said because they did not use the software. I noted that that may be one process, the delegate had used another process. He said he was not qualified. He said now they cannot do this. and the college she studied was an SVP college. And they only gave the SVP to the top level colleges. I noted that the applicant’s evidence was that there were significant issues with the teaching of the college. The representative said that I was an independent assessor and I should place less weight on the delegate and his word, and because there was a problem as the interviews with the applicant had not been recorded as required under Australian law. I asked which law. He did not give a comprehensible response. He argued that I was typing very slowly. He said that the interviewer had finished the interview and maybe did not take down everything. Maybe he had made a lot of mistakes.

4. I have carefully considered the responses of the applicant at hearing, her submissions to the Tribunal and Department, and the information in the copy of the Departmental decision. I explained to her the ‘genuine student’ concept as I understand it, as well as my view that actions such as plagiarism may indicate, or be symptomatic, of, conduct which indicates that an applicant is not, or is likely not to be, a genuine student. I have carefully considered her explanations for the concerns I raised with her, but I do not accept these explanations for the following reasons. I have considerable sympathy for the applicant in studying whilst pregnant and then with a small child. I have taken this into account and given this due regard in considering the cancellation, but there are facilities such as deferral of courses which the applicant could have made use of but does not appear to have done, nor has she provided any medical evidence of ongoing issues, nor does she appear to have contacted the Department to ask for advice or assistance in relation to her pregnancy and birth.

5. In considering the break in her studies from the birth of her child on 13 May 2014 until November 2014, whilst I understand that the applicant may have had a difficult birth and period after the birth, her responses at the hearing raised several further concerns. Her evidence about her completion of the Advanced Diploma of Management from Barkly college raised concerns about her study in this period – she claimed to have stopped studying, quite reasonably, at the birth of her child on 13 May 2014. However, she claimed that she then completed her Advanced Diploma of Management, with a completion date of 30 June 2014 on the certificate. As I put to her, this appears to indicate that she did not attend classes for one and half months, and in a 12 month course, this is a significant period of time out of the course. Initially she said that she had gotten and done the assessment early. When pressed she said that she had done classes in another stream. I do not find her explanations entirely convincing and have some concerns about her study at this time. As I noted to her at hearing, an Advanced Diploma is, according to the AQF, a significant level of study. Then when she was discussing the start of her Advanced Diploma at TEDI, she said that she was enrolled to start in September but did not attend and had her CoE re-issued. She said that she had had a medical condition. She has not provided any medical evidence of this, despite the delegate raising this as a concern much earlier in the process. She said at hearing that she had could not attend, and had not paid the fees, so TEDI cancelled her CoE, but she had it re-issued after she explained her medical condition. I noted that her husband could have attended to pay fees and explained her absence but she said his English was not good enough. I have some concerns that the applicant has not attended, paid or engaged with her provider until her CoE was cancelled and she faced the potential ramifications of this.

6. In relation to the question of her knowledge of her course times, I have considered the evidence in the Departmental decision with her claims and evidence carefully. I have referred to the fuller interview notes in the Departmental file and whilst I continue to have some concerns, I am willing to give her the benefit fo the doubt and accept that she may have changed her course times to care for her child, which she did in fact say to the interviewer in the interview of 30 January 2015 (Df. 7).

7. In considering the claim of plagiarism, I have had regard to the reported interview responses of the applicant in the delegate’s decision, her responses in submissions, and her responses at the hearing. I do not find any of the applicant’s claims or responses convincing in relation to the claim of plagiarism. I have had regard to and place considerable weight on the delegate’s reporting in the decision record that they entered a sample of her work into the internet search engine Google, and that a significant amount of her work was found word for word on the internet. When this was put to her in the interview she said that she searched from google, she does from the internet, she changes what she wants to change. Later she said that the teacher mentioned plagiarism and said you have to change it a bit. When asked how much they were required to change she said we just have to put it in our own words, she changes but not all, she has to change. Later she said they were not taught lessons, they just did the assessment in a computer lab. Later she was asked whether her college dint mind about the plagiarism and she said they don’t mind about the plagiarism as they always pass me. The applicant has given a variety of explanations for this.

8. She has claimed that the interview was conducted in a rude manner and she was scared and offended, was driving and had her baby in the back and was nervous and blank. Even if this were the case this is unfortunate but I do not accept that it explains her responses – it may have meant she did not respond as fully as otherwise but I do not accept that any of these factors would cause her to say things that were not correct. I do not accept these explanations. She claims that no legislation allows a visa to be cancelled for plagiarism. I explained several times at the hearing my view that the assessment of whether an applicant is a general student is a broad concept, with some guidance form the courts, and my view that plagiarism may indicate or be symptomatic of the non-genuineness of a student because it may indicate that the work is not the applicant’s own work, and this in turn may indicate that the applicant is not learning what it is expected a student would learn in that particular course, which may, in my view, lead to a finding that the applicant is not a genuine student. I also read to the applicant from the AQF, and noted that an Advanced Diploma is a reasonably high level of study, and that those who complete one are expected to have reasonably sophisticated skills and subject knowledge, and I was not sure that she would get these from plagiarising significant parts of her assessment. I find that plagiarism can form part of the assessment of whether a person is not, or is likely not to be, a genuine student. A linked argument was that the delegate was not a trained assessor, or as submitted by the representative, did not use the correct plagiarism software, or did not record the conversation and so therefore I should give the delegate’s information in the decision record no or little weight. I accept that the delegate may not have been trained in assessing plagiarism, and appears to have used google rather than some sort of proprietary software. I do not see that either weakens or disqualifies the claims of the delegate that they found a significant portion of her work word for word on the internet – this is not a sophisticated process and I do not accept that the lack of any particular training disqualifies the delegate from undertaking it or weakens the claims the delegate has made. I do not accept that not using any type of specific software to search the internet weakens the claim. I accept the claims made by the delegate in the decision record of the process they undertook and the results of those searches, and I give this considerable weight. I do not accept the claims that the delegate was required to record the conversation or was not able to record the conversation appropriately through the contemporaneous notes set out in the decision record which appear to be a logical sequence of questions and answers.

9. When we discussed the specific plagiarism claims she said that they had to access the internet and make a project, but a few things they could change, they were not word for word, and that the assignment was open book. I asked the applicant several times how this work could be considered her work. her response was that they had to give some examples and things. I noted that the decision record said a significant part of her work was found word for word on the internet. The applicant also attempted to shift the focus to the college and teacher. There is no doubt, as I discussed with her, that they have a great duty to students to make sure plagiarism does not occur. But I noted to her that it is also her responsibility to study in a manner that is genuine, and plagiarism maybe indicative of practices that are not. She has argued that the delegate assessed only one assignment. I noted to her however that in the decision record it indicates that the delegate also assessed in class tests. I have had regard to the applicant’s claims and evidence but I do not accept them. I find that for her assignment and one or more in-class tests, on the information from the delegate in the decision record, that she has plagiarised a significant amount of her work from the internet for these pieces of assessment. I find also that she has completed an Advanced Diploma previously, which she claimed she did not engage in this behaviour, and so she would have been very aware that this behaviour was not part of study for an advanced diploma. I find that the applicant here has engaged in significant plagiarism.

10. When I consider my concerns in relation to the time prior to her study of the advanced diploma at TEDI, with my concerns and findings in relation to her plagiarism, I find that these concerns lead me to find that the applicant here may have been in literal compliance with her visa conditions yet has not conducted herself as a genuine student by engaging in significant plagiarism and lack of attendance at the end of her previous course at Barkly and lack of engagement with the beginning of this course at TEDI. On the basis of the evidence before me I find that the applicant is not, or is likely not to be, a genuine student.

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

13. The applicant said that her purpose in coming here was to study. I noted she had been here in 2009. I asked when she considered that her study would be concluded. She said she wanted to finish her Bachelor of Business. On the evidence before me I am willing to accept that the applicant’s purpose was to study and give this some weight.

    the extent of compliance with visa conditions

14. I asked if she had complied with visa conditions. She said she had. She said she had worked as a networker, only 20 hours a week or less. On the evidence before me I am willing to accept that the applicant has complied with visa conditions and give this some weight.

    degree of hardship that may be caused (financial, psychological, emotional or other hardship)

15. In submissions the applicant said that there would be a significant hardship to her if the visa was cancelled and she would not be able to recover as her parents would not forgive,  and she would have sole responsibility. Going back would be the end of her study plans. She asks for her pregnancy and health issues to be given due regard, and requested a copy of the recording of interviews. At hearing the applicant said that her parents had sent her here for a better future. She said that there would be hardship if she had to go back as she would not be finishing her course, not finishing her studies. She said her course was supposed to have started and she had applied for work rights and had not been given. I asked if there was any hardship to her husband or son. She said if it was cancelled she did not have a future, she could open a business in India or in Canada, as her brother is in Canada and they could go there she wanted to finish study so that if she moves there with she can open her business with her brother and use her skills there, if she went back to India she would have to start from the bottom over there.

16. I noted that she had a large number of certificates. She said it was not easy to get a job in India and she just wanted to open her business. I asked what kind of business and she said she was planning to open a restaurant or a transport business. I noted she was very well qualified to run a business with certificates and diplomas and an advanced diploma in management. She said that even in the advanced diploma there were some things she did not know, so she wanted to finish a degree in business.

17. She said they came here for her to study so she could enhance her skills, if she could work there why would she come here to enhance skills and spend money, she just wants to finish and open her business. She was worried there would be no good future for her son who is nearly 2 in May.

18. I have considered her responses. I noted that she has achieved a considerable number of qualifications in Australia and I am not convinced that she would suffer any particular hardship from being unable to complete future courses including a claimed bachelor. I accept that she, her husband and son may face some hardships in having to leave their lives in Australia where they have been for a considerable time, and that their families may be upset and disappointed, and that the applicant’s family may suffer some economic hardship, but I am not convinced on the evidence before me that the degree of hardship in this case would be substantial and I give this factor little weight.

    circumstances in which ground of cancellation arose. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

19. I noted we had discussed the grounds that may lead to cancellation above. I asked her if she believed that the ground for cancellation arose because of circumstances beyond her control. She did not indicate so and I find on the evidence before me that the ground for cancellation did not arise in circumstances beyond the applicant’s control.

20. I have considered the circumstances as discussed and set out above. In particular I have considered whether her pregnancy, birth and care of her child are mitigating factors for the ground of cancellation. In this case I do not accept that they are – here is a situation not in which for example the applicant has breached conditions because of childcare arrangements or a difficult birth. Rather, I have found that the applicant is not, or is likely not to be a genuine student. I have found that the plagiarism was significant. I find that the ground for cancellation here is significant, and goes to the very heart of the purpose of the student visa, and I find that this factor must be given significant weight in my assessment.

    past and present conduct of the visa holder towards the department

21. There is nothing to indicate the applicant has not been compliant with the Department and I give this little weight.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

22. I noted I needed to assess what might happen if the visa remained cancelled. She said that she could not think of a future, she could not do anything. She said that if she went back to India she would hardly get a job. I find on the evidence before me that the applicant and her family would not be detained or become unlawful but would depart as required, and I give this factor no weight.

    whether there would be consequential cancellations under s.140

23. In this case there will be consequential cancellation of her husband and son’s visas. No claims have been made in relation to any specific hardship they would face and I give this factor little weight.

    whether any international obligations would be breached as a result of the cancellation

24. I asked if there was any reason she could not return to India. She said that there was no bright future for her. I find that there is no evidence or reason before me why the applicant and her husband and son cannot return to India or any other evidence or reason which would indicate that any international obligations would be breached as a result of the cancellation and I give this factor no weight.

    any other relevant matters.

1. She said she should be given one chance, if she was doing something wrong. She is here to learn. I have sympathy for the applicant but given my findings above I give these claims no weight.

2. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

3. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 573 Higher Education Sector visa.

4. The Tribunal has no jurisdiction with respect to the other applicants.

   Sean Baker
   Member

   
   

   ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

   …

   (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

   (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

   (a)because of the conduct of the holder; or

   (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

   (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

   (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.